The Supreme Court-appointed interlocutors Sanjay Hegde and Sadhana Ramachandran reached Delhi’s Shaheen Bagh Wednesday to persuade anti-Citizenship Amendment Act protesters to end their blockade of a public road. This was an attempt at court-ordered mediation to resolve an issue of road-blockade.
What is mediation?
Mediation is a procedure to amicably resolve a dispute between two contesting parties, with minimum intervention of the court. It comes under the Alternative Disputes Resolution (ADR) mechanisms as referred to under Section 89 of the Civil Procedure Code.
The Section reads: “Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for (a) arbitration; (b) conciliation; (c) judicial settlement including settlement through Lok Adalat; or (d) mediation.”
This allows judges to take up the case only after all avenues to resolve a dispute outside the court have been exhausted. The Supreme Court has also emphasised the effectiveness of mediation to address commercial disputes. Last month, Chief Justice of India S A Bobde pitched for a comprehensive law on making pre-litigation mediation mandatory.
Does it work?
Broadly speaking, no. Despite it being a cost and time-effective ADR mechanism, there is little evidence to suggest mediation has a good success rate. According to a report by the Supreme Court mediation center, only 29 of the 164 cases taken for mediation in the year 2018 were settled while 94 were not. These include civil dispute cases like property dispute and marital discord.
The latest instance of a Supreme Court-monitored mediation panel that failed to reach consensus was in the Babri Masjid-Ayodhya land dispute case.
“Even if there is one per cent chance of an amicable resolution, it should be given a try,” Justice S A Bobde had said in March last year while appointing an SC-monitored panel to resolve the dispute. The Ayodhya dispute mediation committee was headed by Justice KM Kalifulla and included Art of Living founder Sri Sri Ravi Shankar and senior advocate Sriram Panchu.
The attempt at an amicable out-of-court settlement between the two parties — in this case, the Hindu and Muslim parties — failed to fructify, with the Supreme Court ultimately holding daily hearings on the matter before passing a judgment in favour of the Hindu parties.
In 2017 too, the Supreme Court had described the Ayodhya dispute as a matter of “sentiments and religion”, and suggested that it would be best if the contentious issue was settled amicably.
There were previous failed attempts at reaching a negotiated settlement as well even before the 1992 demolition of the Babri Masjid, but the difference is that none of the earlier moves were court-mandated or referred.
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Is it any different in Shaheen Bagh?
Unlike the much complex Ayodhya-Babri Masjid land dispute that centred around historical claims of two communities, the Shaheen Bagh sit-in protest concerns a road-blockade. The protesters, mostly women, have been holding a sit-in on road 13 A of Shaheen Bagh for over 65 days now. Petitions have been filed against blocking of the road as a result, which has thrown traffic out of gear in parts of Delhi and Noida.
Acknowledging that people have a fundamental right to protest, the Supreme Court had appointed two advocates as interlocutors with the mandate to persuade the protesters to move the protest elsewhere. Democracy, the judges said, is about expression of views but “there are lines and boundaries” for it, the court had said.
Shaheen Bagh protesters have said that while they were open to speak with the authorities, but have no plans of giving up on the protest site.
The Supreme Court will hear the matter again on February 24. It remains to be seen if mediation will work in this case. In its last hearing on the matter on February 17, the court had asked Delhi police to suggest alternatives to the protest site.
The bench had said if nothing works out, “we will leave it to authorities. We are hopeful that some reason will prevail”.
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